How the Dems could still blow it
By: David Nather
June 28, 2012 07:18 PM EST

The Supreme Court just handed the Democrats a huge gift — the John Roberts seal of approval on the health care reform law that just about everyone thought would be struck down.

So how can they blow it?

It’s not an idle question. The conservative chief justice and four of his liberal colleagues declared the law constitutional, but that doesn’t mean that it will work — or get more popular, or survive more legal challenges or dodge more Republican attacks.

For all the talk about how oppressive the individual mandate will be, the penalties for not buying coverage are so low — especially in the first couple of years — that there are serious questions about whether it will actually bring in as many people as it’s supposed to.

The penalty starts at $95 or 1 percent of an individual’s income, whichever is greater. That’s in 2014, when the mandate takes effect. By 2016, when it’s fully phased in, the penalty will be either $695 or 2.5 percent of income. That’s compared to the thousands of dollars a legally acceptable insurance policy would cost if you were to go out and buy one.

So when Roberts said from the bench that “it is indeed likely that many [more] Americans will choose to pay the IRS than buy insurance,” he might have been right.

And if the mandate doesn’t bring in enough young and healthy people, the danger is that the pre-existing condition coverage that’s also in the law — guaranteed coverage for people with health problems — would force insurers to raise their premiums to cover their costs.

That was also the danger if the Supreme Court had struck down the mandate but left the new insurance rules in place. The justices didn’t go that way — but the threat is still a real one.

The Medicaid expansion might flop.

Now that the Supreme Court has ruled that states can refuse to participate in the law’s expansion of Medicaid, some of them probably will. There’s no way to know how many at this point — but it’s safe to say that the Medicaid expansion will no longer cover the 16 million people it was expected to reach.

Keep in mind that 26 states challenged the constitutionality of the Medicaid expansion — so if you’re looking for the most likely candidates to opt out of the expansion, start there. And you can also look up the list of Republican governors who have been pushing to turn the whole Medicaid program into block grants, since they think the program is straining their budgets already.

But senior administration officials are holding out hope that the rich federal funding — the feds will cover 100 percent of the extra costs for the first few years — will be attractive enough to convince most states to go ahead with the expansion.

Democrats can assume the law is safe.

It’s not — not even close. The law’s opponents have always hated it more than its supporters have liked it. So Sarah Palin may have been right when she said in a Facebook post that the ruling “fires up the troops” on the right who may be that much more motivated to vote in November.

House Republicans won’t get very far when they vote — again — to repeal the law in July. But if enough Republican voters show up in November to hand Mitt Romney the White House and Republicans control of the Senate, the GOP would be able to repeal most of the law by a simple majority vote. Not all of it, with only a narrow Senate majority, but enough of it to gut the law.

And if the Republicans don’t kill big chunks of the law, the courts still could knock out other pieces.

The Supreme Court resolved challenges to the individual mandate Thursday, but the attack on the contraceptive coverage mandate — a rule issued under a provision of the health care law — is still going forward, according to the Becket Fund for Religious Liberty, a group that’s behind several of the lawsuits.

Democrats can misjudge the politics — again.

Democrats insisted that the public would get behind the law once it passed. Then they insisted that the support would come once some of the most popular provisions kicked in.

Now they can hope that a Supreme Court ruling will bestow popularity on the law. And maybe it will. But the baseline is pretty bad, and the odds of improving it aren’t much better.

An April tracking poll by the Kaiser Family Foundation found that 70 percent of the public had an unfavorable view of the mandate. And when the law’s opponents were asked whether they’d like the law more if the Supreme Court said the mandate is constitutional, only 7 percent said yes.

The Supreme Court’s approval might help, but — as Republicans from Mitt Romney to Rush Limbaugh are hoping — the fact that the court called the mandate a “tax” probably won’t.

And that leaves the Democrats in the awkward position of either trying to deny that the individual mandate is a tax — the position Obama staked out previously — or just admitting it’s a tax because that’s why John Roberts left it alone.

Or they can just dodge the question, as Nancy Pelosi is trying to do. “Technical terms,” she said Thursday. That may work for a while — but you know the Republicans aren’t going to let it drop.

Democrats can stick to their talking points.

It’s not true that Obama administration officials never talk about the health care law — they’ve been strategically promoting the most popular parts of it, like the coverage of young adults and the $1.1 billion in rebates consumers and businesses are supposed to get if their insurers didn’t spend enough on medical care.

But one thing’s certain about the old talking points: They weren’t working. Not only did Americans stay bitterly divided over the law, polls show they became less informed over time about what was actually in it. And they never understood how it worked. The individual mandate was always the least popular part of the law, and the pre-existing condition coverage was always one of the most popular — suggesting there was a huge group of people who never understood why the two were connected.

Obama did make a new attempt to explain the connection Thursday in his speech from the White House. If people who can afford insurance don’t buy it, Obama said, “some folks might wait until they’re sick to buy the care they need — which would also drive up everybody else’s premiums.” He also went back to the broader narrative about the law — coverage for 30 million uninsured Americans — that he’s used less often since he signed the bill into law two years ago.

It could be the start of a new round of presidential salesmanship on the campaign trail. But if most Americans still don’t think they’re going to get anything from the law — other than the swelling deficits and rising premiums they keep hearing about from the critics — no amount of salesmanship will help Obama get the public back on his side.

This article first appeared on POLITICO Pro at 7:12 p.m. on June 28, 2012.